~~~~~~~~~~~ Antony Dominic, J. The appeal is filed against the judgment in W.P.(C) No.27755 of 2008 challenging the award rendered by the Central Government Industrial Tribunal cum Labour Court, Ernakulam in I.A.No.162/2006. The dispute in question was raised by the 1st respondent herein and the issue referred for adjudication was whether the action of the appellant in not treating the 3rd respondent as a regular employee is legal and justified and, if not, what relief the workmen is entitled. Before the Tribunal, witnesses were examined on behalf of the Management and Union and Exts.W1 to W6 and M1 to M7 were marked and by the impugned award, the Tribunal answered the reference by holding that the Management acted improperly and unfairly in not regularising the 3rd respondent as Caretaker in the LIC Guest House, Thiruvananthapuram. On that basis, the appellant was directed to consider his regularisation. It was challenging this award, the Writ Petition was filed by the appellant and on its dismissal, this appeal is filed.
2. We heard the learned counsel for the appellant and the learned counsel appearing for respondents 1 and 2. Learned counsel for the appellant referred to the award extensively and contended that the Labour court committed a gross illegality in passing the award.
3. Facts of the case are that the 3rd respondent was engaged by the appellant as Caretaker in the Guest House at Thiruvananthapuram on 12.5.1992 on a consolidated compensation of Rs.750/-. He continued as such and the compensation paid to him was also periodically revised. In the year 2000, dispute claiming regularisation was raised on his behalf and on failure of the conciliation, the reference in question was made, which led to the award impugned.
4. The contention of the appellant was that the 3rd respondent was appointed as a Caretaker only on a temporary basis and that such an appointee, irrespective of the length of his service, is not entitled to claim regularisation. Award rendered by the Tribunal shows that the 3rd respondent was appointed as a Caretaker in the Guest House at Thiruvananthapuram on a consolidated remuneration described as compensation of Rs.750/- based on an application submitted by him on 11.5.1992. Admittedly, he continued to regularly work as Caretaker in the Guest House of the appellant and he is still continuing also. He is the only Caretaker in the Guest House also. The remuneration payable to him, which is described as “compensation”, also was periodically revised and when the reference to the Tribunal was made, it was Rs.2,000/- per month. These factual findings of the Tribunal are fully supported by the documentary evidence which were available before us and are not disputed by the appellant.
5. Therefore, the 3rd respondent was employed by the appellant since 1992 and he continued in service and was being regularly paid by the appellant. He was the only person employed at the Guest House and there is nothing on record to indicate that the appellant did not require his services. Those facts show that in the Guest House of the appellant there was requirement of a permanent Caretaker and that it is inspite of it, in order to deprive the 3rd respondent of his statutory entitlements, he was retained in service without regularisation on payment of a paltry sum. Such a factual situation, in our view, even amounts to a case of unfair labour practice as provided in the 5th schedule to the Industrial Disputes Act which justify the award passed by the Tribunal for the regularisation of the 3rd respondent.
6. However, counsel for the appellant relied on by the judgments of the Apex Court reported in Satya Prakash v. State of Bihar [2010 (4) SCC 179] and High Court of Judicature of Patna v. Shyam Deo Singh [(2014) 4 SCC 773] to contend that the 3rd respondent could not have claimed regularisation. First of all, those are judgments, which were rendered in the context of the orders that were passed or can be passed in proceedings under Article 226 of the Constitution of India. The jurisdiction of this Court under Article 226 and the jurisdiction of the Industrial Tribunal dealing with a dispute referred to it are qualitatively different and therefore, the judgments rendered by the Apex Court in the context of the proceedings under Article 226 of the Constitution of India cannot be pressed into service to impugn the award.
7. In any case, the admitted fact that an instrumentality of the state was continuing, the 3rd respondent as Caretaker of its Guest House from 1992 without regularisation, itself entitled him to seek regularisation as ordered by the Industrial Tribunal.
8. We fully agree with the conclusions of the learned Single Judge.
Writ Appeal fails and it is dismissed.
Sd/- ANTONY DOMINIC, JUDGE Sd/- ALEXANDER THOMAS, JUDGE.
ps/6/6/2014 //True copy// PA to Judge